Excerpt: - - there is moreover no mention whatever in the warrant itself of the magistrate who issued it having been satisfied that there was a common gaming house which required to be searched; if as a matter of fact he had satisfied himself that he was issuing the warrant under section 5 of the act, he ought not to have tried the case himself but offered to give evidence as a witness in the case......in this case, and (2) whether the evidence of p. w. 2, which alone refers to the alleged common gaming house, was wrongly disbelieved or discredited by the appellate. court. as regards the first point, the appellate magistrate has relied on the. ruling in gangadas banerjee v. emperor 1930 cal 365 , and my attention has not been drawn to any decision pointing the other way. even apart from the decision relied upon by the subdivisional magistrate, i am of opinion that the presumption referred to in section 6 can only apply to searches conducted in pursuance of a warrant issued under section 5 of the act. in this particular case the warrant does not purport to have been issued under this section of the act, but on the contrary purports to have been 'issued under section 96,.....

Judgment:

Pandrang Row, J.

1. This is an appeal by the Public Prosecutor from the order of acquittal passed by the Subdivisional Magistrate of Gobichettipalayam in a case in which 20 persons were charged by the Police with an offence punishable' under Section 9, (Madras Gaming Act 3 of 1930). The Sub-Magistrate convicted all the accused, and on appeal all of them were acquitted by the Subdivisional Magistrate.

2. The two questions that arise in this; appeal are : (1) whether the presumption referred to in Section 6, Gaming Act, is available to the prosecution in this case, and (2) whether the evidence of P. W. 2, which alone refers to the alleged common gaming house, was wrongly disbelieved or discredited by the appellate. Court. As regards the first point, the appellate Magistrate has relied on the. ruling in Gangadas Banerjee v. Emperor 1930 Cal 365 , and my attention has not been drawn to any decision pointing the other way. Even apart from the decision relied upon by the Subdivisional Magistrate, I am of opinion that the presumption referred to in Section 6 can only apply to searches conducted in pursuance of a warrant issued under Section 5 of the Act. In this particular case the warrant does not purport to have been issued under this section of the Act, but on the contrary purports to have been 'issued under Section 96, Criminal P. C. There is moreover no mention whatever in the warrant itself of the Magistrate who issued it having been satisfied that there was a common gaming house which required to be searched; in fact it is extremely doubtful whether his mind ever dwelt on this question when he signed the warrant. The fact that reference was made to Section 5 in the application for a warrant does not show that the Magistrate actually issued the warrant under that section. His remarks on this point in his judgment are irrelevant; if as a matter of fact he had satisfied himself that he was issuing the warrant under Section 5 of the Act, he ought not to have tried the case himself but offered to give evidence as a witness in the case. His remarks in the judgment are not entitled to rank as evidence, especially in view of the fact that they attempt to supply the omissions or defects found in the warrant itself, and to vary its terms. The warrant is to be in writing and must contain all the matters that the law requires to be stated therein. Oral statements intended to vary the terms of a warrant required by law to be in writing are not admissible.

2. As regards the second point, after going through the evidence of P.W. 2 I see no reason to differ from the observations of the appellate Magistrate regarding his evidence, namely, that it is entitled prima facie to no weight and that no credit could be given to his uncorroborated testimony. It cannot be said with any reason that the appellate Magistrate was wrong in discrediting him. No doubt the trial Magistrate has expressed the opinion that the witness was a straightforward and honest man, but this is a matter of opinion not connected with the demeanour of the witness, and his evidence does not show that he is particularly honest or particularly straightforward. On the other hand some portions of his evidence are incredible, especially his statement that every player used to pay one rupee to. the gardener on every day the play went on in the sarai or bungalow. There can be no doubt that once the presumption under 8. 6 is found to be not available in this case and the evidence of P.W. 2 cannot be relied upon, the correctness of the acquittal of the accused cannot be seriously questioned. Apart from the presumption and the evidence; of P. W. 2, there is really no evidence to show that the bungalow in question was ever used as a common gaming; house. The mere fact that occasionally people used to play cards there, and perhaps for money, does not necessarily; make it a common gaming house. J. therefore see no reason to interfere is appeal with the order of acquittal passed by the Subdivisional Magistrate.